Towns' appeal fails in court

Four Cape towns do not have standing to challenge the Massachusetts Department of Agricultural Resources (MDAR) approval of Eversource’s planned herbicides on Cape Cod.

The towns of Brewster, Eastham, Orleans and Dennis had requested an adjudicated hearing before the state Pesticide Board to contest the 2016 Yearly Operational Plan, which included herbicide application under the power lines in multiple Cape towns. That year has passed. Eversource has a new YOP for 2017 that includes herbicide use in ten towns including Brewster, Chatham, Dennis, Harwich and Orleans. Never the less early this month a magistrate found in favor of Eversource who had contended the towns lacked the proper standing to request the hearing.

The towns had worked with the grassroots group Protect Our Cape Cod Aquifer (POCCA) to formulate the appeal, and provided $60,000 in funding. Most of that was earmarked for testimony by an ecotoxicologist. As the hearing didn’t happen close to $45,000 remains available. Eversource did refrain from using herbicides in Orleans, Dennis and Brewster last year. Eastham was not on the spraying schedule.

“I believe the ruling was very helpful to us not withstanding the denial of town standing at this time,” the towns' attorney Bruce Taub said. “It provided a road map on what towns might do to acquire standing. My understanding is the towns are currently discussing what is the most prudent and effective way to proceed. We have not given up by any means.”

The Brewster selectmen discussed the ruling Monday night.

“In the 2017 program they can go back and spray anything they missed,” Brewster Town Administrator Michael Embury said. “My recommendation whether other communities participate or not is we should continue with attorney Taub and go back to the drawing board and take another shot for 2017. I consider it successful because they didn’t spray (last year).”

The 2017 plan is before MDAR and the comment period expires March 27. Brewster plans to write a letter.

“ We submitted our Yearly Operational Plan for Cape Cod and Martha’s Vineyard in late January and, with the comment period still open, haven't finalized where or when our work will take place,” Durand noted. “However, as we move forward with planning our work this year, we’ll continue to update all of the towns on the schedule to keep them informed of our plans.”

The Association to Preserve Cape Cod has already written in opposition.

“Eversource continues to overlook a truly Integrated Vegetation Management program and even experiment with other proven technologies and best management practices,” the Association wrote. “Using chemicals first does not protect Cape waters—both groundwater and surface water”

APCC also criticized the monitoring of the herbicide program and questioned whether proper protocols were followed.

“Eversource has never considered implementing independent testing for pesticides it uses in the environment. Business as usual is harmful to the health and well-being of people of Cape Cod,” the APCC said. “Instead of proactively working to avoid health and environmental impacts, Eversource seeks conclusive evidence of health and environmental risks. Where alternatives exist, common sense should take precedence over having to wait 20 years to see elevated cancer rates.”

Laura Kelley, president of POCCA, was more disappointed with the ruling than Taub.

“All we’re asking for is a hearing to talk about what we think is problematic. What saddens me is we need to be sick in order to be heard and my whole being wants to prevent us from being sick,” Kelley said. “Now ten more towns will be sprayed and thousands of gallons will be used. The whole process saddens me.”

Taub said the reason the towns lack standing to challenge the plan is they didn’t present specific harm.

“It’s called aggrievement, an esoteric area of the law,” he explained. “Aggrievement is not statutory. it is a subjective interpretation. So to have standing you would need better evidence of a specific aggrievement, not a hypothetical. I need something more substantive, something an independent person could sink his teeth into. If that’s what they’re asking for we’re going to try to give it to them. We hope ultimately we will prevail.”

As Kelley noted they’ll need someone or some entity that can demonstrate harm. But there is another approach.

“Ultimately the bigger fish is when the five-year Vegetation Management Plan has to be ruled on (next year) as opposed to the one Yearly Operational Plan,” Taub pointed out. “Eversource has a strong argument when they say the VMP was approved (by MDAR) so as long as the YOP is consistent it should also be approved.”

Kelley doesn’t want to wait another year; she wants a Superior Court case this year.

“This is the third year in a row we’ll try to round up all 15 towns,” she said, sighing. “We are going along the only route given us by the state and they are not willing to allow the door to be opened. This is year five of spraying.”

She urges people opposing the Eversource spraying to write to the state agencies involved in making the decisions.

“The comment period runs till March 27,” Kelley noted. “Now is the opportunity to speak your mind with fact-based comments. If we come together there is power in numbers, that’s what prevails.”